[2009] KEHC 156 (KLR)
The court found that the prosecution witnesses had previously attended court and given evidence. There was no indication that the witnesses had been bonded or were aware of the requirement to attend the de novo hearing. The absence of witnesses could not be attributed to deliberate non-compliance or neglect by the...
Source-derived case information.
- Citation
- [2009] KEHC 156 (KLR)
- Parties
- Applicant: Republic; Defendant: Philip Kipkemoi Lele
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 48 of 2005
- Procedural Posture
- Criminal Case / Ruling on Oral Application to Dismiss for Non Attendance of Witnesses
- Outcome
- application to dismiss declined
- Legal Topics
- Murder Trial, Mistrial, De Novo Hearing, Witness Attendance, Dismissal Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Philip Kipkemoi Lele
Defendant
Procedural Posture
Criminal Case / Ruling on Oral Application to Dismiss for Non Attendance of Witnesses
Legal Issues
- 1 Whether the case should be dismissed due to the absence of prosecution witnesses at the scheduled hearing date.
- 2 Whether the witnesses were properly bonded or notified to attend the de novo hearing.
Ratio Decidendi
The court found that the prosecution witnesses had previously attended court and given evidence. There was no indication that the witnesses had been bonded or were aware of the requirement to attend the de novo hearing. The absence of witnesses could not be attributed to deliberate non-compliance or neglect by the prosecution. Accordingly, the court declined to dismiss the case and ordered that the witnesses be bonded to attend at the next hearing date.
Court Disposition
application to dismiss declined
Orders
- Application to dismiss the case is declined.
- Prosecution witnesses to be bonded for attendance at the next hearing date.
Full Case Text
Judgment text and source record
43 paragraphs
Criminal Practice and Procedure
Subject of main case murder
a) Hearing began 6th June, 2006 Kimaru Judge
with assessors
b) Proceeded with Mugo J 19th May, 2008 for hearing
c) Order to being De novo by Mugo J mistrial.
d) Day called out for hearing witnesses absent.
Application to dismiss case against accused as witnesses not present.
State opposes application.
Held
a.The circumstances of case show witness were available on 6th June, 2006.
b.Benefit of doubt as to whether witness are aware of case.
c.Application declined.
Case Law- Nil
Advocates
P. Kiprop state counsel instructed by the Attorney General for the state – present
K.L. Kipyegon advocate instructed by the firm of M/S K.L. Kipyegon & co. advocates for the accused - present
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CRIMINAL CASE 48 OF 2005
REPUBLIC ……………………………………. PROSECUTOR
VERSUS
PHILIP KIPKEMOI LELE ………………………… ACCUSED
RULING
NO.1
Criminal Practice and procedure
I: Background
1. I have an oral application before me requiring the Court to dismiss this case as the witnesses are not before court.
2. The trial began on 6th June, 2006 with assessors by Kimaru J. He did not complete the case. It was instead taken over by Mugo J who proceeded to hear the murder trail case without assessors.
3. On the 17th June, 2009, Mugo J declared the trial a mistrial by relying of the case law of Peterson Maina Wanjiku V R HCCR 8/06. (unreported) Nyeri CA.
and the case of Benard Kinoti M’arachi V R CRA 114/08 (unreported)
4. It therefore was directed by this court that the matter begin “De novo” Hearing dates of 6th October, 2009 was given.
5. The day called out for hearing the accused was absent but was produced to court by order of this court. The witnesses were absent. They were not bonded to attend court. The DCIO Bomet did not avail the witnesses.
6. This court was orally asked to dismiss the case as the witnesses were absent.
II: Findings.
7. The witnesses were availed on 16th June, 2006. They gave evidence. There is no indication that the witnesses are bonded to attend court or aware that the hearing was beginning De novo.
8. I accordingly decline the application and order that the witnesses be bonded at the next hearing date.
DATEDthis 7th day of October, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
P. Kiprop state counsel instructed by the Attorney General for the state – present
K.L. Kipyegon advocate instructed by the firm of M/S K.L. Kipyegon & co. advocates for the accused - present